17‐3494‐ag
Thompson v. Barr
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2018
(Argued: May 2, 2019 Decided: May 13, 2019)
Docket No. 17‐3494‐ag
CHIKE ABAYOMI THOMPSON, AKA CHIKE THOMPSON,
Petitioner,
‐ against ‐
WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW FROM
THE BOARD OF IMMIGRATION APPEALS
Before:
KEARSE, WESLEY, and CHIN, Circuit Judges.
Petition for review of a decision of the Board of Immigration
Appeals dismissing petitionerʹs appeal from a decision of an Immigration Judge
ordering his removal on the ground that he had been convicted of an aggravated
felony crime of violence. On review, petitioner argues that his conviction for
second‐degree assault under New York Penal Law § 120.05(1) is not a crime of
violence as defined in 18 U.S.C. § 16(a).
PETITION DENIED.
Chike Abayomi Thompson, pro se, Brooklyn, New York,
for Petitioner.
Song E. Park, Senior Litigation Counsel; Joseph H.
Hunt, Assistant Attorney General; Cindy S.
Ferrier, Assistant Director; Civil Division, United
States Department of Justice, Washington, DC, for
Respondent.
PER CURIAM:
Petitioner Chike Abayomi Thompson, a native and citizen of
Jamaica, seeks review of a decision of the Board of Immigration Appeals (ʺBIAʺ)
dismissing his appeal of a decision of an Immigration Judge (ʺIJʺ) ordering his
removal on the ground that he had been convicted of an aggravated felony crime
of violence. In re Chike Abayomi Thompson, No. A 089 152 207 (B.I.A. Oct. 12,
2017), aff’g No. A 089 152 207 (Immig. Ct. Batavia Mar. 1, 2017).
In December 2015, Thompson was convicted of the offense of assault
in the second degree in violation of New York Penal Law (ʺNYPLʺ) § 120.05(1).
Removal proceedings were initiated in November 2016, and on March 1, 2017, an
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IJ denied Thompsonʹs motion to terminate the removal proceedings. The IJ also
ordered Thompsonʹs removal under 8 U.S.C. § 1227(a)(2)(A)(iii) on the ground
that his conviction for violating NYPL § 120.05(1) was an aggravated felony
crime of violence under 8 U.S.C. § 1101(a)(43)(F), which defines ʺcrime of
violenceʺ by reference to 18 U.S.C. § 16. On October 12, 2017, the BIA affirmed
the IJʹs decision and dismissed Thompsonʹs appeal.
Our jurisdiction to review a final order of removal against an alien,
such as Thompson, who was ordered removed because of an aggravated felony,
is limited to ʺconstitutional claims or questions of law.ʺ 8 U.S.C. § 1252(a)(2)(C),
(D). Thompson raises a reviewable question of law: whether a conviction under
NYPL § 120.05(1) is an aggravated felony crime of violence under 8 U.S.C.
§ 1101(a)(43)(F) and 18 U.S.C. § 16. The BIAʹs decision is the basis for our judicial
review. Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review the
question of law de novo. Pierre v. Holder, 588 F.3d 767, 772 (2d Cir. 2009).
The sole issue before us is whether a conviction under NYPL
§ 120.05(1) is a crime of violence as defined in 18 U.S.C. § 16(a).1 We have not yet
addressed whether a conviction under New Yorkʹs second‐degree assault statute
1 We need not determine whether NYPL § 120.05(1) is a crime of violence under 18 U.S.C.
§ 16(b) because the Supreme Court held that § 16(b) is void for vagueness. See Sessions v.
Dimaya, 138 S. Ct. 1204, 1223 (2018).
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is a crime of violence.2 Section 16(a) defines ʺcrime of violenceʺ as ʺan offense
that has as an element the use, attempted use, or threatened use of physical force
against the person or property of another.ʺ 18 U.S.C. § 16(a). ʺ[F]orce is defined
broadly as power, violence, or pressure directed against a person or thing.ʺ
Santana v. Holder, 714 F.3d 140, 144 (2d Cir. 2013) (internal quotation marks
omitted). Furthermore, the ʺuse of physical forceʺ refers to intentional ‐‐ rather
than accidental ‐‐ force and ʺsuggests a category of violent, active crimes.ʺ Leocal
v. Ashcroft, 543 U.S. 1, 9‐11 (2004); see also Johnson v. United States, 559 U.S. 133,
140 (2010) (holding that 18 U.S.C. § 924(e)ʹs nearly identical ʺphysical forceʺ
clause ʺmeans violent force ‐‐ that is, force capable of causing physical pain or
injury to another personʺ).
To determine whether a state conviction is a crime of violence, we
apply the categorical approach and look only to the elements of the state offense
‐‐ not the facts underlying the crime. See Morris v. Holder, 676 F.3d 309, 314 (2d
Cir. 2012); see also Mellouli v. Lynch, 135 S. Ct. 1980, 1986 (2015). Under NYPL
§ 120.05(1), ʺ[a] person is guilty of assault in the second degree when: . . . [w]ith
intent to cause serious physical injury to another person, he causes such injury to
2 We recently held that a conviction under Connecticutʹs first‐degree assault statute,
Conn. Gen. Stat. § 53a‐59(a)(1), is a crime of violence under § 16(a). See Banegas Gomez v. Barr,
No. 15‐3269, 2019 WL 1768914, at *5 (2d Cir. Apr. 23, 2019).
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such person or to a third person.ʺ In addition, New York defines ʺ[s]erious
physical injuryʺ as ʺphysical injury which creates a substantial risk of death, or
which causes death or serious and protracted disfigurement, protracted
impairment of health or protracted loss or impairment of the function of any
bodily organ.ʺ NYPL § 10.00(10).
Thompsonʹs conviction for second‐degree assault, therefore, meets
§ 16(a)ʹs physical force requirement because NYPL § 120.05(1) requires that a
defendant (1) cause a serious physical injury to another (2) with the intent to do
so. See NYPL § 120.05(1); Villanueva v. United States, 893 F.3d 123, 130 n.6 (2d Cir.
2018) (concluding that intent to cause serious physical injury ʺis necessary to
make [an] offense a ʹviolent felonyʹʺ); see also Banegas Gomez, 2019 WL 1768914, at
*5 (holding that a conviction under Conn. Gen. Stat. § 53a‐59(a)(1) constitutes a
crime of violence under § 16(a)); Conn. Gen. Stat. § 53a‐59(a)(1) (ʺA person is
guilty of assault in the first degree when: . . . ʺ[w]ith intent to cause serious
physical injury[,] . . . he causes such injury . . . by means of a deadly weapon or
dangerous instrument . . . .ʺ).
The intent to cause bodily injury necessarily encompasses the use of
force as required under § 16(a). Thus, a person necessarily uses physical force
when violating the NYPL § 120.05(1). See United States v. Castleman, 572 U.S. 157,
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170 (2014) (ʺIt is impossible to cause bodily injury without applying force in the
common‐law sense.ʺ); id. at 169 (reasoning that ʺthe knowing or intentional
causation of bodily injury necessarily involves the use of physical forceʺ).
Moreover, force that causes ʺserious physical injuryʺ under § 120.05(1) is ʺviolent
force ‐‐ that is, force capable of causing physical pain or injury to another
person,ʺ Johnson, 559 U.S. at 140, because New York defines ʺserious physical
injuryʺ as ʺphysical injury which creates a substantial risk of death, or which
causes death or serious and protracted disfigurement, protracted impairment of
health or protracted loss or impairment of the function of any bodily organ,ʺ
NYPL § 10.00(10).
Finally, Thompson argues that NYPL § 120.05(1) is overbroad
because it applies to conduct that does not involve the use or threatened use of
physical force. For example, Thompson argues that NYPL § 120.05(1) would
cover poisoning someone or placing a barrier in front of a car causing an
accident. This argument is without merit, however, as we have held that ʺa use
of physical force can encompass acts undertaken to cause physical harm, even
when the harm occurs indirectly (as with poisoning),ʺ Villanueva, 893 F.3d at 130
(internal quotation marks omitted), or occurs because the defendant ʺinitiat[ed]
. . . a consequence that inflicts injury,ʺ id. at 129, as with placing a physical barrier
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in front of a car causing an accident, see Castleman, 572 U.S. at 170 (ʺ[T]he
common‐law concept of ʹforceʹ encompasses even its indirect application.ʺ);
Banegas Gomez, 2019 WL 1768914, at *4 (ʺ[E]ven if a defendant can commit . . .
assault . . . by means of poison, this nonetheless encompasses the requisite forceʺ
to constitute a crime of violence under § 16(a).).
CONCLUSION
Accordingly, the petition for review is DENIED.
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